Get Their Offers IN WRITING!

The other day, I was speaking with a Parole Board Member about my client’s case, and I remarked that my client had turned down a plea deal for 9 years, and then she lost at her trial.  Unfortunately, she was sentenced to 35 years in TDCJ by a jury that rejected her claim of innocence.

The Board Member said it did not surprise him that such a plea offer could have occurred given the facts of the case, but he said he really wished he had such offers in writing as part of the parole file. Although it would seem logical and fair, I seriously doubt whether any prosecutors ever put plea offers in writing.  Accordingly, my response was that I had never seen a plea offer in writing.  After we concluded our discussion, I started thinking about what we had just discussed, and I couldn’t help but wonder what one could do during plea negotiations to more accurately memorialize the facts for possible later use in a parole review context.

During typical plea negotiations, most criminal defense attorneys get offers along the way from prosecutors, and then all such offers are promptly conveyed to their clients.  The attorney is then usually called upon to give the client his/her opinion as to the reasonableness of the offer and whether any further offers are expected, among other things.

At some point, the prosecutors’ “best offer” is on the table, often as trial approaches, and  the client is faced with a very limited period of time in which the offer must be accepted or rejected.  Attorneys and their clients are forced to go to trial in all cases where the client rejects a last best offer and prefers instead to risk a worse result.  It is generally the case that the prosecutor will ask a judge or jury to sentence the accused to a much longer period of time than the best offer prior to trial.  Hence, what the prosecutor believed was a “fair” punishment may depend largely upon whether the defendant forces the prosecutor to work.  Hmmmm.  Also, as a matter of principle, if the word got out that prosecutors would offer defendants nothing worse than what they were going to ask a judge or jury nto sentence a defendant, there would be very very little incentive for a defendant to ever accept a plea offer.

Irrespective of the reason for the large discrepency between a last best offer and an actual prison sentence, it is absolutely 100% relevant in the parole context of such cases whether a defendant turned down an offer that was considerably lower than the actual sentence.  I believe I have a way to make sure a defendant is protected at the parole review stage when this situation arises, particularly where the lawyer believes it’s in the client’s best interest to accept the offer.

The defense attorney ought to simply take out a sheet of his law firm’s letterhead paper and clearly spell out, in writing what the last best offer in the case is, that the client has been advised as to professional opinions of the attorney about the propiety of accepting the offer, and of course the potential risks of rejecting the offer.  Then, the client and the attorney would simply sign and date the written notice.  This document should preferably be kept in a safe place, because it may very well be the case that the Texas Board Of Pardons and Paroles will have mercy on anyone who has already served a term of confinement that exceeds a plea offer made in the case, provided a signed document like the one described above is part of the documentary evidence in the parole file.

No matter how insignificant it may seem to make a defense attorney create a document that memorializes the rejection of a last best offer, it may be that such attention to detail could pay enormous dividends at a later date.

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